People v. Cole

120 A.D.3d 72, 987 N.Y.S.2d 373
Appellate Division of the Supreme Court of the State of New York·Decided June 5, 2014·Published·Cited by 10 cases

Opinion

OPINION OF THE COURT

Acosta, J.

At issue in this burglary case is whether the trial court conducted the “searching inquiry” required by the Court of Appeals in People v Crampe (17 NY3d 469 [2011]) before allowing defendant to proceed pro se. We find that it did not and, therefore, reverse and remand for a new trial.

Defendant first requested to proceed pro se during the suppression hearing. Noting that they were “in the middle of a hearing,” the court advised defendant that he could confer with counsel about anything he thought counsel “should be doing” when the questioning of the witness was completed. At the conclusion of the evidence, counsel read a statement prepared by defendant, in which defendant sought suppression of a statement. A few days later, the court denied suppression and adjourned the case for trial. Defendant again asked to proceed pro se. The court said that that was a possibility and that it would be discussed on the next court date, and urged defendant to think about it. When defendant said that he “just need[ed] a legal adviser,” the court answered that defendant might get a legal adviser, but urged defendant to discuss it with counsel and “think about it.”

Several weeks later, counsel told the court that he and defendant had discussed the matter and that defendant still wanted to proceed pro se. Defendant responded, “Okay,” when the court asked how he was feeling, and, in response to the court’s inquiry about the level of his education, stated that he had “a full high school education” and “a diploma.”

The court instructed defendant:

“It is in your interest to continue to have [your attorney] represent you. You have a right to represent [74]*74yourself. That doesn’t mean it is a good idea. In fact, it is probably a bad idea. Generally, it is a very bad idea. Mr. San Pedro is a trained attorney so I would urge you avail yourself of his services so that he can represent you in this case. I have every confidence that he will do a very good job.
“Can we proceed with him as your lawyer?”

Defendant responded, “I understand what you are saying but I have been studying and doing legal work. He will be [my] legal . . . advisor.” The court told defendant that San Pedro could be his lawyer or his legal advisor, and defendant confirmed that he preferred to use counsel as a legal advisor. The court reminded defendant that he could change his mind at any time and have the attorney take over as counsel and that defendant should alert the court if he had “any legal questions” or needed to consult with counsel.

The court added,

“Understand that there are all kinds of dangers in doing this, not the least of which is if you find yourself in a position, for example, giving an opening statement in this case, the jury will actually hear you talk to them, which is something that will not happen if you chose not to testify in this case.”

Defendant said that he understood. The court added that this was a course “fraught with problems” and that defendant should “think about it carefully and talk to Mr. San Pedro about it over lunch.” The court permitted defendant to represent himself and granted defendant’s request that San Pedro act as his legal advisor.

Before allowing a defendant to proceed pro se, the court must determine that the defendant’s waiver of the right to counsel is made knowingly, voluntarily, and intelligently (People v Crampe, 17 NY3d 469, 481 [2011], cert denied 565 US —, 132 S Ct 1746 [2012]). A waiver cannot be deemed knowing, voluntary and intelligent unless, after a “searching inquiry,” the court is satisfied that defendant is “aware of the dangers and disadvantages of proceeding without counsel” (id. [internal quotation marks omitted]). The court must adequately inform the accused of the “risks inherent in proceeding pro se” and apprise the defendant of “the singular importance of the lawyer in the adversarial system of adjudication” (id. at 482 [internal quotation marks omitted]).

[75]*75It is not enough to tell the defendant that it is against his interests to represent himself, even when coupled with advise about the consequences of conviction (see e.g. People v Kaltenbach, 60 NY2d 797, 799 [1983] [court’s declarations that defendant was entitled to be represented by a lawyer, that he was facing a serious charge, and that, if convicted, he could receive a year’s imprisonment failed to adequately warn]; People v Sawyer, 57 NY2d 12, 21 [1982], cert denied 459 US 1178 [1983] [court’s declaration that defendant was “facing a very serious charge” and that his “own best interests are probably served by having a lawyer represent you” were “woefully inadequate”]). It is not enough to warn the defendant in general terms that going pro se would be “extraordinarily dangerous” and “that most defendants who represent themselves are not successful,” even when coupled with a discussion of the potential sentences (People v Rafikian, 98 AD3d 1139, 1140 [2nd Dept 2012], lv denied 20 NY3d 988 [2012]).

In addition to insuring that the defendant is aware of the dangers and disadvantages of proceeding pro se, a searching inquiry “encompasses consideration of a defendant’s pedigree since such factors as age, level of education, occupation and previous exposure to the legal system may bear on a waiver’s validity” (Crampe, 17 NY3d at 482). The colloquy should also include the nature of the charges and the range of allowable punishments (see United States v Fore, 169 F3d 104, 108 [2d Cir 1999], cert denied 527 US 1028 [1999]).

A comparison of the warnings given in People v Crampe (17 NY3d at 473-474) and by the hearing court in People v Wingate (17 NY3d 469, 475-480 [2011] [decided with Crampe]), which were found inadequate by the Court of Appeals, with inquiry conducted by the trial court in Wingate (17 NY3d at 476-480), which was found adequate, illustrates the extent of the inquiry that must be conducted.

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People v. Cole, 120 A.D.3d 72, 987 N.Y.S.2d 373 (N.Y. Ct. App. 2014).

120 A.D.3d 72 (People v. Cole) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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